The NYPD break up a protest after curfew. Photo: Ryland West/ ALM

A federal judge on Friday pushed back against New York state's COVID-19 gathering limits, granting a preliminary injunction in a case that challenged restrictions on houses of worship.

U.S. District Judge Gary Sharpe ordered New York officials to not enforce any outdoor gathering limitations, if people are following social-distancing requirements.

According to his order, the officials are also prevented from enforcing indoor gathering limits against the plaintiffs that are greater than restrictions placed on companies in phase two of the state's reopening plan. That provision is also stipulated on people following social-distancing requirements. 

The order is tied to a case filed earlier this month by two priests and three Orthodox Jewish residents of Brooklyn. The lawsuit, filed in the Northern District of New York, listed Gov. Andrew Cuomo, state Attorney General Letitia James and New York City Mayor Bill de Blasio as defendants.

The lawsuit argued that social-distancing rules are not neutral policy but instead a "content-based regulation of First Amendment-protected activity." The litigation argued that while the defendants imposed strict gathering limits for some activities and groups, they permitted large protests over the death of George Floyd and the killing of Black Americans by police.

Limiting the size of synagogue congregations or mandating "drive-in" services for congregants unduly burdened the plaintiffs' religious beliefs, the suit said, arguing the mass demonstrations were "exempted" from such restrictions.

In his decision on Friday, Sharpe said the wide limits on executive latitude were exceeded.

"It is not the judiciary's role to second guess the likes of Governor Cuomo or Mayor de Blasio when it comes to decisions they make in such troubling times, that is, until those decisions result in the curtailment of fundamental rights without compelling justification," he wrote. He also noted that New York, at the moment, is well situated when it comes to the coronavirus infection rate.

His order states that offices and certain retail shopping operations were allowed to open in phase two at 50% capacity, but houses of worship are beholden to a lower indoor capacity standard.

Sharpe also pointed to comments from Cuomo in which he publicly expressed support for the protests. De Blasio has made similar comments too.

Cuomo and de Blasio, high-profile leaders in the state, could have just discouraged the protests by citing public health and stopped short of condemning their message, Sharpe wrote.

Instead of encouraging a "flagrant disregard of the outdoor limits and social distancing rules," the leaders could have used discretion to suspend enforcement for public safety, he wrote.

"They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment," Sharpe wrote.

New York has permitted in-person graduation ceremonies too, if they are outdoors and have no more than 150 people, something that's an exception from limits on outdoor gatherings, according to the ruling. 

"There is nothing materially different about a graduation ceremony and a religious gathering such that defendants' justifications for a difference in treatment can be found compelling," Sharpe wrote.

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